News

CCL's Peck Participates in RAND Institute for Civil Justice Board Meeting

March 11th, 2021

   In a virtual board of advisors meeting, RAND's Institute for Civil Justice presented findings from two projects in its ongoing research. The first focused on the variation in size of federal juries. The project is examining explanations for why district courts choose different jury sizes as a precursor to research that will attempt to establish the optimal size for a jury in civil cases. A second presentation looked at issues in pandemic risk insurance. As a member of the board of advisors and a past president of the group, CCL's Robert S. Peck participated in the meeting.

CCL's Peck Participates in ABA House of Delegates Meeting

February 22nd, 2021

     CCL President Robert S. Peck voted on a variety of resolutions, including ones that addressed disputes over the 2020 presidential election, during the course of the American Bar Association's House of Delegates meeting, which took place virtually. Peck is one of three delegates representing the ABA Trial, Tort, and Insurance Practice Section. 

     One resolution laid out basic principles about the conduct of elections and urged Congress to give "controlling effect" to the popular vote winner in that jurisdiction. A second resolution urged adoption of laws that prohibited the possession or display of firearms by persons other than governmentally authorized military personnel, law enforcement, or security forces around specific areas where legislative debate is taking place or ballots cast.

Peck Assists Cruise Liability Case

February 11th, 2021

     In Morrison v. Royal Caribbean Cruises, a federal magistrate judge must determine issues of liability and law after a three-day trial, in which the Miami's Aronfeld law firm represented the plaintiff, injured when she tripped over an out-of-place, marble-based ashtray in the ship's casino. Prior to decision, the judge asked both sides to offer a draft findings of fact and conclusions of law. Yesterday, plaintiff's counsel filed their proposed fact and legal conclusions, with an assist from CCL's Robert S. Peck.

     The plaintiff's injuries were severe, as the wine glass in her hand shattered and glass was embedded in her face, while also causing mild head trauma from a concussion. The cruise line sought to defend by asserting that the plaintiff was intoxicated on the basis of less then three glasses of wine over a six-hour period of time, on the open and obvious nature of the two-foot tall heavy ashtray, even if obscured by a stool, and by the ship's lack of notice that the ashtray was out of place. Peck's legal analysis provided the court with several different precedents to demonstrate that notice was established based on the facts -- from a witness's testimony that the ashtray was out of place for about 30 minutes, from Royal Caribbean's acknowledgement that guests using slot machines will often move the ashtrays and that crew members are responsible for patrolling the narrow aisles and putting them back in place, and from prior incidents involving the ashtrays. 

     The case is now under advisement.

CCL's Robert S. Peck Recognized with "High Honors" for Pro Bono Work

October 29th, 2020

     The District of Columbia Courts announced today Center for Constitutional Litigation President Robert S. Peck has made its 2019 Pro Bono Honor Roll with "High Honors," the highest recognition it gives. The program, which dates back to 2011, is a joint project of the courts, the D.C. Access to Justice Commission, and the D.C. Bar Pro Bono Center. In awarding high honors to Peck, the courts recognize that he has provided more than 100 hours of pro bono legal work.

 

CCL's Banner Day Continues with Ninth Circuit Win

June 12th, 2020

    The U.S. Court of Appeals for the Ninth Circuit reinstated the jury's verdict today in a case against Chrysler, taken away by a judge who held the evidence of breach of warranty insufficient.

     For years, Chrysler had put a electrical control module into its engines as a space-saving feature. It failed with regularity because of the engine's heat and the distance the current had to travel to get to the pump. The plaintiffs' previous Chrysler kept failing for that reason after less than a year. Chrysler assured them that the new model had fixed the problem, but it didn't. They sued.

     A jury ruled in their favor, awarding compensatory and punitive damages. The judge, however, found the evidence that Chrysler had notice of the problem to be insufficient and entered judgment for the defendant.

     Today, the Ninth Circuit held the judge was wrong, that the evidence was sufficient, and that the jury's compensatory damage verdict had to be reinstated. As for punitive damages, because the judge used the wrong standard in evaluating the compensatory damages, the Court ordered him to use the correct one in evaluating whether evidence supported the punitive damages.

     The decision comes on a day in which CCL's Robert S. Peck, who briefed the case, also argued a case in the Eleventh Circuit, as well as filed briefs in courts in West Virginia and California. 

CCL President Receives Amicus Award

May 18th, 2020

     CCL President Robert S. Peck received the 2020 Amicus Award from the International Municipal Lawyers Association (IMLA). The award recognizes Peck for his work on behalf of municipalities. Most recently, Peck provided pro bono representation to IMLA, the National League of Cities, and the U.S. Conference of Mayors in a series of lawsuits involving climate change that were pending in the First, Fourth, Ninth, and Tenth Circuits, articulating the reasons why appellate review of an attempt to remove these cases from state to federal court should be limited to whether the defendant oil companies can claim federal officer status. Originally, the presentation of the award was to take place at IMLA's 2020 Convention in Washington, DC, but the convention was cancelled in light of the Covid-19 pandemic.

    Peck has also represented a number of U.S. cities as plaintiffs in fair housing litigation, seeking to challenge discriminatory mortgage lending practices. Those cities have included Los Angeles, Philadelphia, Miami, Miami Gardens, Oakland, and Sacramento.

April Round-up of CCL Activities

May 10th, 2020

    During April 2020, despite the Covid-19 pandemic, CCL maintained the furious pace of activity that was seen the previous month. Among the highlights of CCL's activities:

  • CCL filed an amicus curiae brief on behalf of the American Association for Justice and Public Justice in the U.S. Supreme Court in Ford Motor Co. v. Bandemer, originally schedule for argument in April, but now postponed until the term that begins in October.  Before the Supreme Court, Ford argues that it cannot be subjected to personal jurisdiction in either Minnesota or Montana in two cases in which plaintiffs sued Ford for defective designs that caused serious injury. In one case, the injury was death. Ford asserts that there must be a causation element to jurisdiction, so that it does not matter that the person injured or the injuring event both took place in the place of lawsuit. Instead, it contends that it may only be sued where it is headquartered, where it designed the flawed vehicle, or where the vehicle was first purchased. The CCL-authored brief points out that Ford maintains a continuing relationship with car owners and their vehicles, where its dealerships service the vehicle and it encourages owners to buy Ford parts, even if serviced elsewhere, as part of a "Keep Your Ford a Ford" campaign. In fact, one of the two cars in the suit was serviced in a Ford recall at a local dealership. The clear, continuing relationship with the vehicle in the jurisdiction, the brief argues, demonstrates that there is no unfairness in requiring Ford to defend itself within the home jurisdiction of these plaintiffs. On the other hand, any attempt to require the plaintiffs to sue elsewhere would place a hardship on the plaintiffs.
  • CCL participated with co-counsel in filing a supplemental brief in Johnson v. UPS, a case pending in the South Dakota Supreme Court that CCL helped argue in February 2019. The supplemental brief discusses a new U.S. District Court decision that supports liability in the case. UPS had withdrawn workers compensation benefits from the plaintiff six months after she had prevailed on the benefits question in a prior trip to the South Dakota Supreme Court. A jury found it wrongful and awarded both compensatory and punitive damages. The case is still pending.
  • CCL also filed a brief on punitive damages in the Volkswagen Emissions MDL, where Volkswagen has outfitted its cars with "defeat devices" designed to trick emissions testing into believing the cars complied with federal and California requirements when they did not. Despite clearly favorable law cited in CCL's brief, the court reduced individual punitive damage awards from $25,000 each to an arbitrary ratio of 4:1, vastly reducing the damages. The cases are now on appeal to the Ninth Circuit.
  • CCL also filed supplementary authority in Smith v. Surgery Center, a challenge to Colorado's medical-malpractice damage cap, pending in the state court of appeals.

U.S. Supreme Court Gives CCL Two Victories

February 19th, 2019

     In orders issued today, the U.S. Supreme Court denied petitions for certiorari in two cases CCL had won in the courts below. The orders effectively ended both cases.

     In Griffen v. Kemp, an Arkansas trial judge sued the state supreme court and each of its justices in federal court asserting that an order of recusal constituted a violation of his constitutional rights, including a right to preside over cases within his court's jurisdiction. CCL represented the Arkansas Supreme Court and three of its justices, but took the lead in the briefing on behalf of all the justices as the case developed. The District Court dismissed the complaint against the Arkansas Supreme Court, but allowed the case to continue against the individual justices. CCL then sought a writ of mandamus from the U.S. Court of Appeals for the Eighth Circuit, asking that the entire case be dismissed. The writ was granted and dismissal was ordered. The trial judge plaintiff then sought a writ of certiorari, asking the U,S. Supreme Court to restore the action. That petition was denied in Tuesday's order.

     In Burmaster v. Herman, a military contractor brought a Section 1983 action against a private lawyer and private law firm, alleging that they controlled state action that deprived him of his constitutional rights. In the U.S. Court of Appeals for the Seventh Circuit, CCL argued that the action was subject to dismissal on multiple grounds, including failing to state a cause of action because there was no credible allegation that the private defendants could control state action and because the plaintiff's prosecution by the U.S. Attorney's Office was a federal action that does not implicate Section 1983. In addition, CCL argued that the case, brought in the Eastern District of Wisconsin, did not have any connection to the allegations or defendants, all of which were in Louisiana. The Seventh Circuit ruled simply that the courts lacked jurisdiction. The denial of certiorari by the Supreme Court ends that action.

CCL Files Reply Brief on Iqbal/Twombly Issue in Ninth Circuit

July 23rd, 2018

     In a case where the federal trial judge ruled that the plaintiff's claim for a defective medical device survived a preemption challenge but still dismissed the case over a failure to sufficiently allege causation, CCL filed its reply brief, explaining that the complaint satisfied even the most rigorous causation pleading requirements despite being at a disadvantage because further details were only available after discovery could take place.

     In Martin v. Medtronic, Inc., the plaintiff suffered through five years of debilitating pain because the pain medicine dispenser implanted into him had constant cycles of over- and under-infusion due to manufacturing defects. When his physician received permission to replace the device with a newer model, the illnesses that afflicted the plaintiff immediately ceased. The problems the plaintiff suffered mirrored those identified in warning letters, recalls, and inspections from the FDA, demonstrating the causal connection needed to state a valid claim. Nonetheless, the District Court insisted on even greater specificity to survive a motion to dismiss. This, the CCL brief on behalf of the plaintiff, was error.

CCL President Participates in Think Tank Board Meeting

July 21st, 2018

     CCL President Robert S. Peck participated in the July 21 meeting of the advisory board to the Civil Justice Research Initiative, a joint project of the law schools at the University of California at Berkeley and at Irvine. Chaired by Berkley Law Dean Erwin Chemerinsky, the Initiative focuses its research work on access to justice issues.

     The July meeting, among other issues, considered further outreach from its April symposium at Berkeley on "What's Happening in Federal Court," an outgrowth of research by University of Connecticut professors Alexandra Lahav and Peter Seigelman, which explored a precipitous decline in plaintiff win rates in federal court. Peck participated in the symposium as both a moderator and a panelist.

     The next CJRI symposium will take place on September 28 and explore legal issues surrounding gun violence.